Contraceptive Mandate Rolled Back for Employers

 October 11 2017     Shelly Hodges-Konys and Diane Cross

Last week, Interim Final Rules (currently unpublished) were released expanding the rights of employers to opt out of providing contraception coverage to employees at no cost through their employer-sponsored health plan.  These two rules roll back a portion of the Affordable Care Act (ACA) requiring employers to provide birth control coverage to participants of their group health plans at no cost. 

Currently per the ACA, employers must offer health benefits that cover all FDA-approved contraception, unless they qualify for an exemption.  Per the tri-agency – Internal Revenue Service, Employee Benefits Security Administration, and Centers for Medicare and Medicaid Services – the contraceptive mandate exemption is expanded and will now encompass all non-governmental plan sponsors that object to providing contraceptive coverage based on sincerely held religious beliefs or sincerely held moral objections including institutions of higher education in their arrangement of student health plans.  In addition, if an insurer has sincere religious beliefs or moral objections, it would be exempt from having to sell coverage that provides contraception. The exemptions apply to both non-profit and for-profit entities. 

While there is no apparent self-certification as previously required under accommodations applicable to religious employers, employers must still be aware of legal requirements under other laws.  For example, employers subject to ERISA that object to providing contraception on the basis of sincerely held religious beliefs or moral objections that wish to remove the benefit from their medical plan must still comply with ERISA’s plan document,  Summary Plan Descriptions (SPDs), notice, and disclosure requirements relating to a reduction in covered services or benefits. As such, those employers are obligated to provide notice as required update their plan documents, SPDs, and other plan materials accordingly.  In addition, all employers with sincerely held religious beliefs or moral objections implementing this change should be aware that they may need to update their Summary of Benefits and Coverage as required by the ACA if contraception is referenced. 

For employers with no religious or moral objection, preventative services coverage and the contraceptive coverage mandate remains.  The Interim Final Rules became effective on October 6, 2017, and will be published on October 13, 2017.  Please contact your HORAN Representative with questions.